(HC) Giannini v. Rackley, et al., No. 2:2014cv00472 - Document 11 (E.D. Cal. 2014)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 06/25/14 granting 2 Motion to Proceed IFP and denying 3 Motion to Appoint Counsel. Also, RECOMMENDING that the application for writ of habeas corpus be dism issed without prejudice for failure to exhaust state remedies and that the clerk of the court serve a copy of any order adopting these findings and recommendations together with a copy of the petition filed on 2/13/14 on Michael Patrick Farrell, Senior Assistant Attorney General. Referred to Judge Troy L. Nunley. Objections due within 14 days. (Plummer, M)

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(HC) Giannini v. Rackley, et al. Doc. 11 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHARLES K. GIANNINI, 12 13 No. 2:14-cv-0472-TLN-EFB P Petitioner, v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 R. J. RACKLEY, Warden, et al., 15 Respondents. 16 17 Petitioner is a state prisoner proceeding without counsel seeking a writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. Petitioner seeks leave to proceed in forma pauperis. See 28 U.S.C. 19 § 1915(a). Examination of the in forma pauperis affidavit reveals that petitioner is unable to 20 afford the costs of suit. 21 A judge “entertaining an application for a writ of habeas corpus shall forthwith award the 22 writ or issue an order directing the respondent to show cause why the writ should not be granted, 23 unless it appears from the application that the applicant or person detained is not entitled thereto.” 24 28 U.S.C. § 2243. It appears on the face of the petition that petitioner has failed to exhaust state 25 court remedies as to his challenge to the 72-month sentence imposed by the Florida Parole 26 Commission. 27 28 The exhaustion of state court remedies is a prerequisite to the granting of a petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must be waived 1 Dockets.Justia.com 1 explicitly by respondent’s counsel. 28 U.S.C. § 2254(b)(3). A waiver of exhaustion, thus, may 2 not be implied or inferred. Exhaustion of state remedies requires that petitioners fairly present 3 federal claims to the highest state court, either on direct appeal or through state collateral 4 proceedings, in order to give the highest state court “the opportunity to pass upon and correct 5 alleged violations of its prisoners’ federal rights.” Duncan v. Henry, 513 U.S. 364, 365 (1995) 6 (some internal quotations omitted). 7 After reviewing the petition for habeas corpus, the court finds that petitioner has failed to 8 exhaust state court remedies. When asked, “Did you appeal from the judgment of conviction?,” 9 petitioner responded “Yes,” and referred to a July 23, 2013 order of dismissal from the Circuit 10 Court of the Second Judicial Circuit in and for Jefferson County, Florida.1 ECF No. 1 at 2-3. 11 When asked, “Other than a direct appeal from the judgment of conviction and sentence, have you 12 previously filed any petitions, applications, or motions with respect to this judgment in any court, 13 state or federal?” petitioner responded “No.” Id. at 3. And when asked “Did you appeal to the 14 highest state court having jurisdiction the result of action taken on any petition, application or 15 motion,” petitioner responded “No.” Id. at 4. Petitioner explained that he had not filed in the 16 highest state court because the July 23, 2013 order of dismissal instructed him to “file in the 17 Circuit Court of the County in which [he is] detained.” Id. 18 Petitioner admits that he has not presented his claims to the highest state court and there is 19 no allegation that state court remedies are no longer available to petitioner. Petitioner has 20 therefore failed to exhaust state court remedies, as the highest state court has not yet had the 21 opportunity to resolve petitioner’s constitutional claims on their merits. See Greene v. Lambert, 22 288 F.3d 1081, 1086 (9th Cir. 2002). Before proceeding in federal court, petitioner must first 23 exhaust his claims in state court. This court expresses no opinion as to which state court, Florida 24 or California, is the proper forum for exhaustion. 25 ///// 26 ///// 27 28 1 The Circuit Court of the Second Judicial Circuit is not Florida’s highest state court. 2 1 Petitioner has requested that the court appoint counsel. There currently exists no absolute 2 right to appointment of counsel in habeas proceedings. See Nevius v. Sumner, 105 F.3d 453, 460 3 (9th Cir. 1996). The court may appoint counsel at any stage of the proceedings “if the interests of 4 justice so require.” See 18 U.S.C. § 3006A; see also Rule 8(c), Rules Governing § 2254 Cases. 5 The court does not find that the interests of justice would be served by the appointment of 6 counsel. 7 Accordingly, IT IS HEREBY ORDERED that: 8 1. Petitioner’s application to proceed in forma pauperis (ECF No. 2) is granted. 9 2. Petitioner’s request for appointment of counsel (ECF No. 3) is denied. 10 Further, IT IS HEREBY RECOMMENDED that the application for a writ of habeas 11 corpus be dismissed without prejudice for failure to exhaust state remedies and that the Clerk of 12 the Court serve a copy of any order adopting these findings and recommendations, together with a 13 copy of the petition filed on February 13, 2014, on Michael Patrick Farrell, Senior Assistant 14 Attorney General for the State of California. 15 These findings and recommendations are submitted to the United States District Judge 16 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 17 after being served with these findings and recommendations, any party may file written 18 objections with the court and serve a copy on all parties. Such a document should be captioned 19 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 20 within the specified time may waive the right to appeal the District Court’s order. Turner v. 21 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 22 DATED: June 25, 2014. 23 24 25 26 27 28 3

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